Bench Memos

Goodwin Liu’s Cheap Attack on the Roberts Nomination

Three days after President Bush announced his nomination of John Roberts to the Supreme Court, Berkeley law professor (and new Ninth Circuit nominee) Goodwin Liu published an op-ed against Roberts’s nomination.  According to Liu, “Roberts’s record is cause for concern,” and “[h]is legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.” 

Let’s consider the quality and integrity of some of Liu’s arguments:

1.  Evidently borrowing from People for the American Way’s playbook, Liu offers as the lead count in his indictment Roberts’s unanimous opinion for the D.C. Circuit in Hedgepeth v. Washington Metropolitan Area Transit Authority.  That case concerned a D.C. policy that provided that minors (but not adults) who committed offenses in Metrorail stations be taken into custody.  D.C. police applied the policy to a 12-year-old girl who ate a French fry in a Metro station.  In a straightforward application of Supreme Court precedent, the district judge— Clinton appointee (and winner of the Thurgood Marshall Award of Excellence) Emmet Sullivan—described the policy as “foolish” but ruled that it did not violate the Constitution.  Similarly, Roberts opened his opinion with this summary paragraph:

No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later—all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as ‘‘foolish,’’ and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.

And later:

The district court had and we too may have thoughts on the wisdom of this policy choice—it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears—but it is not our place to second-guess such legislative judgments.

Liu’s account, however, tries to leave the impression that Roberts personally supported the application of the policy to the child (and doesn’t mention any of the facts that would destroy that impression):  “Roberts said the police’s treatment of Hedgepeth served ‘the goal of promoting parental awareness and involvement with children who commit delinquent acts.’”  The reader who mistakenly placed his trust in Liu wouldn’t understand that the passage that Liu clips is in the context of Roberts’s application of very deferential rational-basis review:  “We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.”

As I wrote in “The French-Fry Flapdoodle”:  “It is very amusing that advocates of expanded D.C. ‘home rule’ … won’t even trust D.C. officials to establish food policies in Metro stations. The Framers had faith that Americans were fit for self-governance. Those on the Left who think judges have a roving mandate to correct every stupid law or policy plainly don’t share that faith.”

2.  Liu’s second count against Roberts is even worse (and, again, seems to be just a rehash of PFAW’s sloppy attack):

In 2003, [Roberts] wrote an opinion urging his court to consider overruling its own precedent to hold that an Endangered Species Act regulation exceeded Congress’s power to regulate interstate commerce.

In addition to weakening key environmental laws, Roberts’s theory of limited federal power would potentially undermine bedrock civil rights laws, including the Civil Rights Act of 1964. His theory was so extreme that it was all but rejected by the Supreme Court in a recent decision upholding federal power to ban medicinal uses of home-grown marijuana.

Liu is wrong on all counts.

Roberts, in his four-paragraph dissent from the denial of rehearing en banc, did not opine (much less urge his court to hold) that the challenged regulation “exceeded Congress’s power to regulate interstate commerce.”  What he did was point out that the particular approach the panel majority took “seems inconsistent” with Supreme Court holdings and conflicts with a Fifth Circuit ruling, thus making en banc consideration appropriate.  He specifically stated that en banc review “would also afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.” 

After initially parroting the same false line, even the New York Times acknowledged that its (and, by implication, Liu’s) account was mistaken:  “He [Roberts] did not say the federal government lacked the power to block a California real estate development because it endangered the toad.… He did not question the constitutionality of the Endangered Species Act.”  As Jonathan Adler wrote at the time (same link; emphasis in original):  “These mistakes should never have occurred, as the meaning of Roberts’ opinion should be clear to anyone with a modicum of legal training who actually read the opinion.”

So Liu is further wrong in claiming that Roberts advocated a “theory of limited federal power” that would “weaken[] key environmental laws” and “potentially undermine bedrock civil rights laws.”  And, as Jonathan has confirmed for me, Liu is also wrong in contending that the Supreme Court’s later decision in Gonzales v. Raich “all but rejected” the point that Roberts did make.  (It’s extremely odd in any event for Liu to rely on a later Supreme Court ruling to fault Roberts’s reading of the Supreme Court precedents that existed at the time of his opinion.)

3.  In a clear and hilarious sign of what a hard-Left ideologue he is, Liu maintains that the values of “free enterprise,” “private ownership of property,” and “limited government” “are code words for an ideological agenda hostile to environmental, workplace, and consumer protections.”

4.  Liu calls Roberts’s nomination “a seismic event that threatens to deepen the nation’s red-blue divide.”  But it should now be clear that it is Liu’s nomination—threatening to entrench the domination by left-wing Californians of the nine-state (and two-territory) Ninth Circuit—that would deepen the Ninth Circuit’s red-blue divide, the very divide that has fueled efforts to split the circuit.